Traction v. Viva Labs, Inc., No. 3:16-cv-02772 (S.D. Cal.): The Court issued an order denying Defendant’s motion to dismiss this putative class action for violation of California’s CLRA, UCL, FAC and breach of express and implied warranties. Plaintiff alleges Defendant misleadingly labels and markets its Organic Extra Virgin Coconut Oil as healthy, and as a healthy alternative to butter and other cooking oils, despite that it is actually inherently unhealthy and a less healthy alternative. The Court denied the motion based on lack of standing and declined to dismiss Plaintiff’s UCL, FAL, and CLRA claims based on the reasonable consumer test. The Court also denied the motion with respect to Plaintiff’s UCL unlawful claim, and breach of express and implied warranty claims.

Court “Cans” False Advertising Class Action About Canned Beans

Beckman, et al. v. Arizona Canning Co., LLC, No. 3:16-cv-02792 (S.D. Cal.): The Court entered an order granting Defendant’s motion to dismiss this putative class action asserting violations of California’s UCL, FAL, and CLRA. Plaintiffs allege that Defendant sold Sun Vista whole canned bean products to consumers, representing that the cans primarily are filled with beans, when they contain only a small amount of beans that are fully submerged in a large amount of water.

The Court found that Plaintiffs have standing under the UCL and FAL because they suffered an economic injury caused by Defendant’s alleged unfair business practice or false advertising. The Court also found that Plaintiffs sufficiently allege they relied on the alleged misrepresentation under the UCL, FAL and CLRA. However, the Court ruled that Plaintiffs do not have standing for products they did not purchase because the products and alleged misrepresentations are not sufficiently similar to permit standing for bean varieties not purchased by Plaintiffs. The Court then dismissed the Complaint it its entirety without prejudice for failure to meet the heightened pleading standard of Rule 9(b) because it is unclear which bean products Plaintiffs purchased. The Court reasoned that Plaintiffs failed to sufficiently provide the “who, what, where and how” of the alleged misconduct.

Quiroz v. Sabatino Truffles New York, LLC, et al., No. 8:17-cv-00783 (C.D. Cal.): The Court issued an order granting in part and denying in part Defendants’ motion to dismiss this putative class action for violation of California’s CLRA, UCL, FAL, New York’s GBL (deceptive acts or practices and false advertising), Pennsylvania’s UTPCPL, the Magnuson-Moss Warranty Act, breach of express and implied warranties, unjust enrichment, negligent misrepresentation, and fraud. Plaintiffs allege Defendants falsely advertise their olive oils as being infused with actual white and black truffles when in reality the olive oils are instead are flavored with an industrially produced, chemically-driven perfume known as “2,4-dithiapentane.”

The Court denied Defendants’ motion based on lack of standing finding that there is substantial similarity between Defendants’ White Truffle Infused Olive Oil and Black Truffle Infused Olive Oil, therefore, Plaintiffs’ allegations apply equally to both. The Court found that none of Plaintiffs’ claims are barred by the statute of limitations, but in regards to members of the putative class(es), the Court will address statute of limitations issues, should they be relevant, at the class certification stage. The Court also denied Defendants’ motion based on the failure to state a claim finding that Plaintiffs’ factual contentions are sufficient to state a plausible claim. The Court denied the motion to dismiss the fraud claims finding that Plaintiffs have adequately pled all of the requisite elements of their fraud-based claims. With respect to the implied warranty claims, the Court denied the motion as to Plaintiffs’ California and Pennsylvania implied warranty of merchantability claims and granted the motion as to Plaintiffs’ New York implied warranty of merchantability claim. The Court denied the motion to dismiss Plaintiffs’ California unjust enrichment claim, but granted the motion as to the New York unjust enrichment claim. Finally, the Court granted Defendants’ motion to dismiss Plaintiffs’ negligent misrepresentation and MMWA claims.

The Court rejected Defendant’s argument that Plaintiffs’ claims are barred by the doctrines of express preemption, conflict preemption, field preemption, and implied preemption on the grounds that the FDA, vested by Congress with the sole authority to regulate the use, manufacture, and labeling of color additives, has the first and last word on the issue of color additives. Similarly, the Court rejected Defendant’s argument that its compliance with the FDA’s labeling requirements for caramel coloring provides it a safe harbor under California law. The Court also found that Plaintiffs sufficiently alleged a misleading statement. Finally, the Court denied Defendant’s motion to dismiss on the basis that the First Amendment protects its commercial speech.

Birbrower v. Quorn Foods Inc., et al., No. 2:16-cv-01346 (C.D. Cal.): The Court issued an order granting final approval of settlement in this putative class action alleging violations of California’s CLRA, UCL, FAL, and fraud/fraudulent concealment. Plaintiff claims that Defendant has been misrepresenting on all of its product packaging that “mycoprotein” – the main ingredient in all of the products – is the same or substantially similar to a mushroom, truffle or morel. In truth, “mycoprotein” is a term invented by Quorn to mislead consumers and hide the fact that its products are actually made of mold.

The final settlement terms are as follows: Defendant is ordered to forever remove from its product packaging and all other forms of advertising the following language or its functional equivalent: “There are believed to be over 600,000 varieties of fungi in the world, of which are among the most sought after foods like varieties of mushrooms, truffles and morels.” The Court awarded as attorneys’ fees to Class Counsel the amount remaining from the $1,500,000 Settlement Fund after all administrative costs, Plaintiff’s $5,000 incentive award, and $46,690 in litigation costs have been paid from the Settlement Fund. The Court approved an incentive award of $5,000 to Plaintiff Kimberly Birbrower. The amounts remaining in the Initial Settlement Fund of $2.5 million, after the payment of (a) the valid Claims to the Settlement Class Members in the amount of approximately $735,856, (b) the attorneys’ fees award provided above, (c) costs in the amount of $46,690, (d) an incentive award in the amount of $5,000, and (d) the Claims Administrator’s total costs (expected to be approximately $200,000), shall be distributed to FARE in accordance with the terms and timelines of the Settlement.

White v. Just Born, Inc., No. 2:17-cv-4025 (W.D. Mo.): The Court issued an order denying Defendant’s motion to dismiss this putative non-functional slack-fill class action for violation of Missouri’s Merchandising Practices Act, and raising a claim for unjust enrichment. Plaintiff alleges that Defendant misleads consumers about the amount of Hot Tamales candy and Mike and Ike candy inside their opaque, cardboard packaging. Defendant moved to dismiss arguing that: (1) a reasonable consumer would not be deceived by the packaging; (2) slack-fill is not by itself impermissible under federal or state law, violation of food-labeling regulations does not support a finding of liability under the MMPA, and Plaintiff does not sufficiently allege that the slack-fill is non-functional or deceptive; (3) Plaintiff lacks standing to pursue injunctive relief; and (4) Plaintiff fails to state an ascertainable injury under the MMPA. In denying the motion, the Court held that the question of whether a consumer would determine from the labeling information that the boxes contain excess slack-filled space is a question of fact that Plaintiff had sufficiently plead its claims. It further held that Defendant plead a threat of ongoing or future harm, sufficient to establish standing.

In re Simply Orange Orange Juice Marketing and Sales Practices Litigation, No. 4:12-md-02361 (W.D. Mo.): The Court issued an order partially granting and partially denying Plaintiffs’ motion for class certification in this action alleging violations of several states’ consumer protection laws, including California’s UCL, CLRA, and FAL, Missouri’s MMPA, Florida’s Deceptive and Unfair Trade Practices Act, and New York’s GBL on behalf of seven statewide classes of consumers, based on the claim that Defendant The Coca-Cola Company sells its Simply Orange, Minute Maid Pure Squeezed, and Minute Maid Pure Premium products, while failing to disclose its use of added flavors in those products.

The Court certified an issues class pursuant to Rule 23(c)(4), and found that Plaintiffs had sufficiently demonstrated Article III standing, and that the proposed classes are ascertainable and typicality was met. It further easily concluded that numerosity was met, as the proposed classes are in the millions, and unopposed adequacy was too, as to class counsel and representatives. And it determined that commonality too, was met with respect certain of Plaintiffs’ issues, which the Court determined were susceptible to common proof. The Court appointed Norman E. Siegel as Liaison Class Counsel and Stephen A. Weiss, James E. Cecchi, and Kim Richman as Class Counsel under Rule 23(g). Paul Wieczorek, Cheryl D’Aloia, John Albert Veal, Jr., Randall Davis, Kirk Yee, Jeremy M. Dasaro, and Carole Sovocool, are appointed class representatives. But finding those named plaintiffs lacked Article III standing to pursue injunctive relief, the Court denied Plaintiffs’ motion to certify the class under Rule 23(b)(2).

Iglesias v. Ferrara Candy Co., et al., No. 3:17-cv-0849 (N.D. Cal.): The Court issued an order denying Defendant’s motion to dismiss this putative non-functional slack-fill class action for violation of California’s CLRA, FAL, and UCL. Plaintiff alleges that Defendant misleads consumers about the amount of Jujyfruits® brand candy inside their opaque, cardboard packaging, uniformly under-filling those boxes by 41 percent. In denying the motion, the Court ruled that application of the primary jurisdiction doctrine was not warranted because existing FDA regulations define “nonfunctional slack-fill,” and therefore the case does not involve a question for which the Court lacked a clear indication of how FDA would view the issue or require resolution of an issue of first impression. It further held that Plaintiff adequately alleged that the Defendant’s candy products contain nonfunctional slack-fill and that the packaging is likely to deceive a reasonable consumer.

Lau v. Pret A Manger (USA) Limited – Complaint, No. 1:17-cv-05775 (S.D.N.Y.): Putative slack-fill class action for violation of the deceptive and unfair trade practices and false advertising provisions of New York’s GBL, and raising a claim for common law fraud. Plaintiff alleges that Defendant deceptively packages its Pret A Manger® sandwich wraps in partially opaque packaging so that consumers cannot see the empty air (or slack-fill) in the wrap.

Nguyen, et al. v. Lotus By Johnny Dung Inc., No. 8:17-cv-01317 (C.D. Cal.): Putative class action for violation of California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties. Plaintiff alleges that Defendant deceptively advertises its products to treat and cure health conditions including diabetes, high blood pressure, and cholesterol, and to “kill cancer cells.” Plaintiff further alleges that the Vietnamese-only advertising is by design, intended to exploit a lesser educated Vietnamese population.

In re Trader Joe’s Tuna Litig., No. 2:16-cv-1371 (C.D. Cal.): The Court dismissed this consolidated putative class action, alleging violations of various states’ consumer protection laws, and raising claims of fraud, breach of warranty, fraudulent misrepresentation, and unjust enrichment. Plaintiffs claimed that Trader Joe’s misled consumers by selling five-ounce canned tuna products that did not meet a pressed cake weight standard established in FDA regulations, even though the labels of the products-at-issue accurately represented the net and drained weight of its contents. The Court rejected Plaintiffs’ misrepresentation theory, finding Plaintiffs’ state law claims were impliedly preempted, because they relied entirely on violation of a federal regulation that can only be enforced by the FDA. Because it was Plaintiffs’ first dismissal, the Court granted leave to amend.

Stanton v. Sargento Foods Inc., No. 1:16-cv-04578 (N.D. Cal.): Putative class action asserting that Defendant falsely markets their cheese products as “Natural,” even though the cows used to make the products are fed with genetically modified feed and/or given an unnatural recombinant called Bovine Soatotropin (rbST).

]]>https://www.foodlitigationnews.com/2017/06/new-filings-june-12-2017/Preliminary Settlement Approved in Misleading Coconut Water Suithttp://feeds.lexblog.com/~r/FoodLitigationNews/~3/a7KRFFe6ytI/
Mon, 05 Jun 2017 21:55:08 +0000https://www.foodlitigationnews.com/?p=4143Continue Reading]]>Ma, et al. v. Harmless Harvest, Inc., No. 2:16-cv-07102 (E.D.N.Y.): The Court preliminary approved a settlement in this putative class action alleging that Defendant labeled its coconut water as “100% organic” and “USDA Organic” and “100% raw” even though it knew its products were not solely made from organic coconuts and were not “raw.”

As part of the settlement, Defendant represented that it had removed all “raw” and “100% Organic” labels from products imported into the United States, although Defendant will continue to label its coconut water as “USDA Organic.” In addition, Defendant agreed to pay an independent consultant to review for a period of two years the labeling on Defendant’s coconut water products to ensure the labels are accurate. Defendant will also pay a settlement administrator up to $350,000 to notify class members of the settlement. And Defendant agreed to pay up to $575,000 to Plaintiffs’ counsel for their attorneys’ fees and costs and up to $20,000 total to the named plaintiffs as an incentive award.